One of the unresolved mysteries in the March 10 2004 Intensive Care Showdown over the government’s secret wiretapping and data-mining programs is why FBI Director Robert Mueller plays a central role. The spying operation has long been attributed to the National Security Agency, while the legal sign-off came from attorneys at the Justice Department.

Ostensibly the spying operation was focused on external threats to the country, so the spying information should have been mostly funneled to the CIA. But new FBI documents released today by Congress hint that a controversial FBI office that is already under legal scrutiny may have been involved (SEE UPDATE that questions this conclusion).

The FBI’s Mueller joined with then-Attorney General John Ashcroft and his deputy James Comey in threatening to resign unless the program was changed. So the FBI had to have been deeply involved in either doing some of the data mining or receiving leads from the NSA.

Today Congressman John Conyers released the notes (.pdf) that Mueller provided to the House Judiciary Committee about his meetings in the time period surrounding the Intensive Care Showdown.

As others have noted, the notes back up Mueller and Comey’s account of then White House Counsel Alberto Gonzales’ and White House Chief of Staff Andrew Card’s attempt to get the ailing Ashcroft to overrule Comey and give a legal blessing to the secret, warrantless intelligence activities.

The morning that the Justice Department told the White House that it had changed its mind about the secret spying and wouldn’t renew its legal sign-off, Mueller’s notes indicates he met with the FBI’s General Counsel Valerie Caproni; John Pistole – then the Executive Assistant Director for Counterterrorism and Counterintelligence; and most intriguingly, Michael Fedarcyk – the first Section Chief of the Communication Exploitation Section, Counterterrorism Division. (See Update on how it might be another Fedarcyk)

As only Wired News has reported, the Communications Exploitation Section is already under criminal investigation by the FBI and the Justice Department’s Inspector General Glenn Fine for sending misleading "emergency" letters to the nation’s telecoms to get thousands of Americans’ phone records. Those fake "exigent letters" were first revealed by the Inspector General’s report on the abuse of a key Patriot Act power, known as a National Security Letter.

Fedarcyk looks to be the lowest ranking member at that meeting (Wainstein seems to have been Mueller’s Chief of Staff (Hat Tip PL) former General Counsel, while Gebhardt was a Deputy Director) — meaning that his office was likely centrally involved somehow in the secret surveillance — perhaps only as a receiver of leads from the NSA — perhaps as a partner in the government’s alleged data-mining of U.S. citizens phone and internet usage records.

The Communications Exploitation Section "analyzes terrorist electronic and telephone communications and identifies terrorist associations and networks," according to 2004 testimony from Pistole.

UPDATE 10/18: An alert reader writes in to point out that there were two high level officials with the last name Fedarcyk:

How sure are you that "Fedarcyk" refers to Michael Fedarcyk. There was also a "Janice Fedarcyk" working for the FBI’s counter-terrorism unit at that time…

" In 2003, she was selected as the Assistant Section Chief of the Terrorist Financing Operations Section within the Counterterrorism Division. Her subsequent promotion to Assistant Special Agent-in-Charge (ASAC) in the FBI’s Critical Incident Response Group, National Center for the Analysis of Violent Crime, included oversight of FBI components which furnished behavioral analysis and consultation on a variety of investigative matters, including terrorism threats; weapons of mass destruction; and, domestic and international terrorism.

In March 2005, Ms. Fedarcyk was promoted to serve as the FBI’s representative to the National Counterterrorism Center (NCTC), Directorate of Strategic Operational Planning. Ms. Fedarcyk was instrumental in leading the development of a classified national strategic operational plan in the war on terrorism."

Given her apparent "senior" position, unless you have reason to know that it was Michael Fedarcyk at the meeting, Janice Fedarcyk would be a better choice.

It should also be noted that the person that Bassem Youssef — the guy who blew the whistle on the exigent letters — was apparently referring to Michael Fedarcyk when he discussed the lack of concern of his supervisor — who had held the job before Youssef. I find it odd that the FBI/DoJ would initiate a criminal investigation into the use of the "exigent letters" AFTER Comey, Goldsmith and Mueller had reached an agreement on how "the program" should work, if Michael Fedarcyk was one of the people involved in the March 9 meeting of FBI personnel.

Also, it should be noted that the "Wainstein" at the meeting wasn’t just a former FBI General Counsel, at the time of the meeting he was (Acting?) US Attorney for the District of Columbia. In other word, it looks to me like Mueller was ready to initiate criminal prosecutions back in 2004, and communicated that to Cheney, Card, and Gonzales when he met them at noon on 3/9 (a meeting not attended by Comey), and that Mueller brought Comey and Goldsmith in to back him up at the 4:00 pm meeting in Card’s office…